JUDGMENT (Delivered by Hon'ble Akhtar Husain Khan,J.) Above Criminal Appeal No. 182/1981 has been filed by accused appellants Jagvir Singh, Bijendra, Diggo alias Dragvir Singh, Bishambhar, Karan Singh and Saheb Singh and above Criminal Appeal No. 217 of 1981 has been filed by accused appellants Chandan, Ram Khilari, Babu, Amar Singh, Gupa, Gyasia, Dariyab Singh and Gulab Singh. Both appeals have been filed under Section 374(2) Cr.P.C. against same judgement and order dated 20.1.1981 passed by Third Additional Sessions Judge, Agra in S.T. No.230 of 1979 (State Vs. Jagvir and 13 others) whereby learned Addl. Sessions Judge has convicted accused appellants Jagvir, Bijendra, Diggo alias Dragvir Singh, Bishambhar and Karan Singh for offences under sections 148 IPC, 302 IPC read with section 149 IPC and 324 IPC read with section 149 IPC and has sentenced each of them thereunder to under go rigorous imprisonment for 15 months, life imprisonment and rigorous imprisonment for one year respectively. Learned Addl. Sessions Judge has convicted accused appellant Saheb Singh for offences under section 147 IPC, 302 IPC read with section 149 IPC, section 324 IPC read with section 149 and section 452 IPC and has sentenced him thereunder to undergo imprisonment for six months, life imprisonment, regorous imprisonment for one year and rigorous imprisonment for 15 months respectively. Learned Addl. Sessions Judge has further convicted accused appellants Chandan, Dariyab Singh, Gulab Singh, Gyasia, Rupa, Amar Singh, Ram Khilari and Babu for offences under sections 147 IPC and 452 IPC and has sentenced each of them thereunder to undergo rigorous imprisonment for three months and 15 months respectively. Learned Addl. Sessions Judge has ordered that sentences awarded to each accused appellant shall run concurrently. Accused appellants Diggo alias Dragvir Singh, Bijendra Singh and Saheb Singh of Appeal No. 182 of 1981 died during pendency of appeal, therefore, appeal stands abated against them. During pendency of Appeal accused appellants Ram Khilari, Babu, Amar Singh, Rupa, Gyasia, Dariyab Singh and Gulab Singh of Appeal No. 217 of 1981 also died, therefore, appeal stands abated in respect of them. Only accused appellant Chandan of Appeal No. 217 of 1981 is surviving. Learned Senior Counsel Sri G.S. Chaturvedi assisted by Sri Samit Gopal appeared for accused appellants. Sri Rajeev Gupta, learned A.G.A. appeared for respondent State of U.P.. We have heard learned counsel for the parties and perused records. Only accused appellant Chandan of Appeal No. 217 of 1981 is surviving. Learned Senior Counsel Sri G.S. Chaturvedi assisted by Sri Samit Gopal appeared for accused appellants. Sri Rajeev Gupta, learned A.G.A. appeared for respondent State of U.P.. We have heard learned counsel for the parties and perused records. Relevant fact for determination of these two appeals is that Crime No. 346 of 1978 has been registered in P.S. Malpura, District Agra under sections 147, 148, 149, 452, 307, 302 IPC against accused appellants Jagvir, Bijendra, Diggo alias Dragvir Singh, Bishambhar, Karan Singh, Saheb Singh, Chandan, Dariyab Singh, Gulab Singh, Gyasia, Rupa, Amar Singh, Ram Khilari and Babu on the written report Ext.Ka-6A presented by complainant Rajpal. According to First Information Report Ext.Ka-6-A in brief version of prosecution is that on 1.11.1978 in evening in his village complainant Rajpal was sitting in the room of Kishori Lal alongwith Balveer Singh, Bedan Singh and Than Singh. Kishori Lal was also present there. They were talking together and smoking Hubble Bubble. Due to festival of Govardhan sufficient lighting was made there. At about 8 p.m. accused Jagvir, Bijendra and Diggo armed with licencee guns, accused Bishambhar and Karan Singh armed with Kattas and accused Chandan, Dariyab Singh, Gulab Singh, Gyasia, Rupa, Amar Singh, Ram Khilari, Babu and Saheb Singh armed with lathies and Farsa came and Saheb Singh challenged Kishori to see him as he was making pairvi of the case relating to the land of Buddha. At the same time all of them in furtherance of common intention entered into the room of Kishori to assault him and accused Ram Khilari and Saheb Singh assaulted Kishori with lathies. Complainant Rajpal and other persons named above who were present there tried to intervene and raised alarm, Mahendra Singh and Prem Singh sons of complainant Rajpal, Preetam Singh nephew of complainant Rajpal and Phool Singh came there. Accused Saheb Singh exhorted to shoot them, whereupon all the accused tried to cordon them and accused Bijendra, Jagvir, Diggo alias Dragvir, Karan Singh and Bishambhar made 8 to 10 fires with guns and kattas at aforesaid Mahendra Singh, Prem Singh, Preetam Singh and Phool Singh. Mahendra Singh son of complainant Rajpal sustained fire arm injuries and died on spot. Aforesaid Preetam Singh also sustained injuries. Thereafter, all the accused ran towards jangal in East. Mahendra Singh son of complainant Rajpal sustained fire arm injuries and died on spot. Aforesaid Preetam Singh also sustained injuries. Thereafter, all the accused ran towards jangal in East. According to First Information Report Ext.Ka-6-A after occurrence Preetam Singh who was a Military man was brought and admitted to Military Hospital and complainant Rajpal went to police station and presented written report in police station. On the basis of which aforesaid Crime No. 346 of 1978under sections 147, 148, 149, 452, 307, 302 IPC was registered in P.S. Malpura, District Agra against aforesaid accused on 1.11.1978 at 11.45 p.m. and investigation was started by police. Inquest report of dead body of deceased Mahendra Singh was prepared by police and his dead body was sent for post mortem in sealed cover after having completed necessary formalities. On the same day injured Prem Singh, Kishori Lal and Phool Singh were also sent for medical examination and their injury reports were prepared by Doctor after medical examination. Later on injured Preetam Singh also died. His inquest report was also prepared and dead body was sent for post mortem after having completed necessary formalities. Thereafter police completed investigation in accordance with law and charge sheet was submitted against accused Jagvir, Bijendra, Diggo alias Dragvir Singh, Bishambhar, Karan Singh, Saheb Singh, Chandan, Dariyab Singh, Gulab Singh, Gyasia, Rupa, Amar Singh, Ram Khilari and Babu for offences under sections 147, 148, 149, 452, 307, 302 IPC, whereupon concerned Magistrate took cognizance and committed the case to the court of session after making compliance of section 207 Cr.P.C.. Thereafter Session Trial No. 230 of 1979 was registered in the Session Court, Agra. Later on, case was transferred to the court of Third Additional Sessions Judge, Agra who framed charges against accused Saheb Singh, Chandan, Dariyab Singh, Gulab Singh, Gyasia, Rupa, Amar Singh, Ram Khilari and Babu for offences under sections 147 IPC, 302 IPC read with section 149 IPC, section 307 IPC read with section 149 IPC and section 452 IPC and against accused Jagvir, Bijendra, Diggo alias Dragvir Singh, Bishambhar and Karan Singh for offences under sections 148 IPC, 302 IPC read with section 149 IPC, 307 IPC read with section 149 IPC and section 452 IPC.. All the accused pleaded not guilty and claimed to be tried. Prosecution examined P.W.-1 Kishori Lal, P.W.-2 Dr. All the accused pleaded not guilty and claimed to be tried. Prosecution examined P.W.-1 Kishori Lal, P.W.-2 Dr. R.B. Singh, P.W.-3 complainant Rajpal, P.W.-4 injured Prem Singh, P.W.-5 Lala Ram, P.W.-6 Dr. R. Prakash Singh, Radiologist, P.W.-7 Inspector Narayan Singh, P.W.-8 Constable 714 Vijai Pal Singh, P.W.-9 I.O. Charan Pal Singh, P.W.-10 Maj. M.K. Chaterji and P.W.-11 S.I. Bhup Singh. After prosecution evidence statements of all accused were recorded under section 313 Cr.P.C.. All the accused stated that they have been falsely implicated. In his statement under section 313 Cr.P.C. accused Ram Khilari stated that when he was at his door twenty one persons armed with lathi, ballam, Farsa and gun came. They entered into his house and assaulted him, whereupon he raised alarm. After having heard noise Chandan Singh came. They assaulted him also. Thereafter said assailants ran towards pokhar (pond) making firing. He further stated that he did not know as to where two persons ran away because he was inside of his house. He stated that he has presented report in the evening to darogaji but he saw his report next day. He stated that a cross case was registered on his report. Accused Chandan Singh also stated in his statement under section 313 Cr.P.C. that he was at his field. After having heard noise of Ram Khilari, he went to the door of Ram Khilari, where assailants assaulted him as well as Ram Khilari. Thereafter they ran away making fire. D.W.-1 Dr. N.B. Saxena, D.W.-2 Dr. G.K. Gupta and D.W.-3 Suresh Kumar Sharma Radiographer have been examined on behalf of accused as defence witnesses. Learned Third Additional Sessions Judge, Agra heard the arguments of the parties and passed impugned judgement and order dated 20.1.1981 whereby he has convicted and sentenced accused appellants as mentioned above. Learned counsel for accused appellants contended that accused appellants are innocent and have been falsely implicated. Prosecution version of occurrence is totally false and concocted. Accused appellants Ram Khilari and Chandan have sustained injuries in the occurrence and cross case has been registered but no explanation has been given by prosecution about injuries of said accused appellants. This leads to inference that prosecution is concealing true occurrence, therefore, the version of prosecution cannot be relied upon. Learned counsel for accused appellants contended that conviction recorded by trial court against accused appellants is against evidence as well as law. This leads to inference that prosecution is concealing true occurrence, therefore, the version of prosecution cannot be relied upon. Learned counsel for accused appellants contended that conviction recorded by trial court against accused appellants is against evidence as well as law. Learned counsel for accused appellants made an alternative contention that even in view of facts and evidence of the case, no offence under section 302 IPC read with section 149 IPC is made out against accused appellants Jagvir, Bishambhar and Karan Singh. Learned counsel for accused appellants contended that both appeals moved by surviving accused appellants should be allowed and conviction and sentence recorded by trial court against surviving accused appellants should be set aside. Learned A.G.A. contended that conviction recorded by trial court against accused appellants is in accordance with evidence as well as law. Learned A.G.A. contended that learned trial court has rightly convicted accused appellants Jagvir, Bishambhar and Karan Singh for offences under section 148 IPC, section 302 IPC read with section 149 IPC and section 302 IPC read with section 149 IPC and accused Chandan for offences under section 147 and 452 IPC.. Learned A.G.A. prayed that both appeals should be dismissed. We have considered the submissions made by learned counsel for the parties. Out of 11 witnesses examined by prosecution P.W.-1 Kishori Lal, P.W.-3 complainant Rajpal, P.W.-4 injured Prem Singh and P.W.-5 Lala Ram are alleged to be eye witnesses of fact and occurrence. P.W.-3 complainant Rajpal has proved First Information Report Ext.Ka-6-A in his statement on oath and has supported version of occurrence narrated in FIR.. P.W.-1 Kishori Lal, P.W.-4 injured Prem Singh and P.W.-5 Lala Ram have also supported version of occurrence narrated in FIR in their statements on oath. P.W.-2 Dr. R.B. Singh has stated in his statement on oath that on 2.11.1978 he was posted as Medical Officer in District Hospital, Agra. He has stated that he conducted medical examination of P.W.-4 Prem Singh, P.W.-1 Kishori Lal and Phool Singh on 2.11.1978 respectively at 1.20 p.m., 1.30 p.m. and 1.40 p.m.. He has proved injuries as well as injury reports of aforesaid injured Prem Singh, Kishori Lal and Phool Singh. Exhibits Ka-3, Ka-4 and Ka-5 have been marked by trial court on injury reports of said injured. P.W.-2 Dr. He has proved injuries as well as injury reports of aforesaid injured Prem Singh, Kishori Lal and Phool Singh. Exhibits Ka-3, Ka-4 and Ka-5 have been marked by trial court on injury reports of said injured. P.W.-2 Dr. R.B. Singh has stated in his statement on oath that on 3.11.1978 at 4.30 p.m. he conducted post mortem of deceased Preetam Singh son of Hoti Lal resident of Nagla Akhey Pathauli, P.S. Malpura whose dead body was brought by Constable No.743 Vijai Pal Singh and Constable no.836 Prem Pal Singh and was identified by them. P.W.-2 Dr. R.B. Singh has proved post mortem report of deceased Preetam Singh as Ext.Ka-6. P.W.-6 Dr. R. Prakash Singh, Radiologist has stated in his statement on oath that on 2.11.1978 he was posted in District Hospital, Agra as Medical Officer. On that day at 4 p.m. he conducted post mortem of deceased Mahendra Singh son of complainant Rajpal resident of Nagla Akkha Pachauli, P.S. Malpura, District Agra. The dead body was brought by Constable No. 247 Bhagwati Prasad and Constable No.1714 Ashok Kumar of P.S. Malpura and was identified by them. P.W.-6 Dr. R. Prakash Singh, Radiologist has proved post mortem report of said deceased Mahendra Singh and Ext.Ka-7 has been marked on it by trial court. P.W.-6 Dr. R. Prakash Singh, Radiologist has stated in his statement on oath that the ante mortem injuries found on the dead body of deceased were sufficient to cause death in ordinary course. He has further stated that death of aforesaid deceased might have occurred on 1.11.1978 at 8 p.m.. P.W.-7 S.I. Narayan Singh has stated in his statement on oath that he had prepared inquest report of deceased Mahendra Singh on the instruction of S.O.. He has proved inquest report of deceased Mahendra Singh. Ext.Ka-8 has been marked on it by trial court. He has further proved photo nash Ext.Ka-9, challan nash Ext.Ka-10 and letter for post mortem Ext.Ka-11. He has stated in his statement that dead body was entrusted to Constable No. 247 Bhagwati Prasad and Constable No.1714 Ashok Kumar for post mortem in sealed cover. P.W.-8 Constable 743 Vijai Pal Singh has stated in his statement on oath that on 3.11.1978 he was posted in P.S. Sadar Bazar, Agra as constable. On that day dead body of deceased Preetam Singh was entrusted to him in sealed cover alongwith papers for carrying it for post mortem. P.W.-8 Constable 743 Vijai Pal Singh has stated in his statement on oath that on 3.11.1978 he was posted in P.S. Sadar Bazar, Agra as constable. On that day dead body of deceased Preetam Singh was entrusted to him in sealed cover alongwith papers for carrying it for post mortem. He has stated that he brought dead body before doctor and identified dead body before him. P.W.-8 Constable Vijai Pal Singh has further stated that so long dead body remained in his custody no one was permitted to touch it. P.W.-9 I.O. Charan Pal Singh has stated in his statement on oath that on 1.11.1978 he was posted as S.O. In P.S. Malpura. He has stated that he was at canal in village Panthauli, constable Vijai Pal Singh came to him with FIR of this crime and register of inquest report. At that time C.O. was also present. Thereafter, he went to place of occurrence and started investigation. He recorded statements of witnesses Kishori Lal, Prem Singh, Bedan, Than Singh, Balveer Singh and Rajpal. He has stated that he deputed S.I. Narayan Singh to prepare inquest report of deceased Mahendra Singh and S.I. Narayan Singh prepared inquest report Ext.Ka-8. P.W.-9 I.O. Charan Pal Singh, S.O. has stated in his statement on oath that he prepared site plan of place of occurrence Ext.Ka-12 at the pointing out of witnesses. He has stated in his statement on oath that he took blood stained earth and plain earth from the place where dead body was lying and kept them separately in sealed cover. He has proved recovery memo of blood stained earth and plain earth as Ext.Ka-1. P.W.-9 I.O. Charan Pal Singh has further stated in his statement on oath that he recovered fired cartridges from the place of occurrence and prepared recovery memo Ext.Ka-2 for the same. P.W.-9 I.O. Charan Pal Singh has identified cartridges recovered from the place of occurrence as material Exhibits 1 to 3 and blood stained earth and plain earth as material Exhibits 4 and 5. P.W.-9 S.O. Charan Pal Singh has stated in his statement on oath that he completed investigation in accordance with law and after having completed investigation, he submitted charge sheet Ext.Ka-20. P.W.-9 S.O. Charan Pal Singh has stated in his statement on oath that on 3.11.1978 injury reports of injured Phool Singh, Prem Singh and Kishori were received by him. P.W.-9 S.O. Charan Pal Singh has stated in his statement on oath that he completed investigation in accordance with law and after having completed investigation, he submitted charge sheet Ext.Ka-20. P.W.-9 S.O. Charan Pal Singh has stated in his statement on oath that on 3.11.1978 injury reports of injured Phool Singh, Prem Singh and Kishori were received by him. On the same day he received information about death of Preetam Singh. He has stated that inquest report of deceased Preetam Singh Ext.Ka-16 was prepared by S.I. Hamid Ullah of P.S. Sadar. He has further stated that letter for post mortem of deceased Preetam Singh Ext.Ka-17, challan nash Ext.Ka-18 and photo nash Ext.Ka-19 were also prepared by said S.I. Hamid Ullah. P.W.-10 Maj. M.K. Chaterji has stated in his statement on oath that on 1.11.1978 he was posted in Military Hospital, Agra. On that day Preetam Singh No. 14289965 was operated before him. He has proved injury report of Preetam Singh as Ext.Ka-21. P.W.-10 Maj. M.K. Chaterji has stated in his statement on oath that on 3.11.1978 aforesaid injured Preetam Singh died. P.W.-11 S.I. Bhup Singh has stated in his statement on oath that on 1.11.1978 he was posted in P.S. Malpura as Head Moharrir. On that day at 11.45 p.m. complainant Rajpal presented written report Ext.Ka-6A at police station. On the basis of which he prepared chik FIR Ext.Ka-22 in his own hand writing and with his signature. He has stated that he had made entry of registration of crime at rapat no. 41. He has proved carbon copy of said G.D. as Ext.Ka-23. P.W.-11 S.I. Bhup Singh has proved copy of G.D. relating to departure of S.O. from police station as Ext.Ka-24 as well as G.D. relating to return of S.O. in police station as Ext.Ka-25. In cross examination made by defence P.W.-11 Bhopal Singh S.I. Has proved copy of G.D. relating to registration of cross report Ext.Kha-1 and copy of Chik FIR of cross case Ext.Kha-2 also. D.W.-1 Dr. N.B. Saxena has stated in his statement on oath that on 2.11.1978 he was posted in District Hospital, Agra and on that day at 6 a.m. he conducted medical examination of accused appellant Chandan Singh. He has proved injury report of accused appellant Chandan Singh as Ext.Kha-3 in his statement. D.W.-2 Dr. D.W.-1 Dr. N.B. Saxena has stated in his statement on oath that on 2.11.1978 he was posted in District Hospital, Agra and on that day at 6 a.m. he conducted medical examination of accused appellant Chandan Singh. He has proved injury report of accused appellant Chandan Singh as Ext.Kha-3 in his statement. D.W.-2 Dr. G.K. Gupta has stated in his statement on oath that on 2.11.1978 he was posted in District Jail, Agra and on that day at 5.50 p.m. he conducted medical examination of accused appellant Ram Khilari. He has proved injury report of accused appellant Ram Khilari as Ext.Kha-4. D.W.-3 Suresh Kumar Sharma, Radiographer has stated in his statement on oath that on 2.11.1978 he was posted in District Hospital, Agra as Radiographer. He has proved X-ray report of accused appellant Chandan Ext.Kha-5. After having gone through whole evidence on record, it is apparent that P.W.-1 Kishori Lal , P.W.-3 complainant Rajpal, P.W.-4 Prem Singh and P.W.-5 Lala Ram are eye witnesses of occurrence. Out of which P.W.-1 Kishori Lal and P.W.-4 Prem Singh are injured also. Defence has given a cross version of occurrence and cross case has been registered on report of accused appellant Ram Khilari. Defence has proved injuries of accused appellant Ram Khilari and Chandan Singh also. In the case of Tika Vs. State of U.P. AIR 1974 S.C 155 Hon'ble Apex Court has held that prosecution is to establish its own case beyond doubt. Falsity of defence is immaterial. In the case of Raghubir Singh Vs. State of Haryana AIR 2009 S.C. 1223 , Hon'ble Apex Court has held that an accused pleading the right of self-defence need not prove it beyond reasonable doubt. It is enough if he establishes facts which on the test of preponderance of probabilities makes his defence acceptable. The plea can be established either by letting in defence evidence or from the prosecution evidence itself but cannot be based on speculation or mere surmises. In view of principles laid down by Hon'ble Apex Court in above pronouncements, we have to see as to whether prosecution has succeeded in establishing his case beyond doubt and as to whether defence has established facts which on the test of preponderance of probabilities make his version acceptable. In view of principles laid down by Hon'ble Apex Court in above pronouncements, we have to see as to whether prosecution has succeeded in establishing his case beyond doubt and as to whether defence has established facts which on the test of preponderance of probabilities make his version acceptable. Perusal of chik FIR of prosecution Ext.Ka-22 and G.D. relating to registration of its crime Ext.Ka-23 as well as G.D. relating to registration of cross report Ext.Kha-1 and copy of chik FIR of cross case Ext.Kha-2 shows that First Information Report Ext.Ka-6A has been lodged on 1.11.1978 at 11.45 p.m. by complainant P.W.-3 Rajpal whereas FIR of cross case Ext.Kha-2 has been lodged by accused appellant Ram Khilari on 2.11.1978 at 11.30 a.m. after having been lodged First Information Report Ext.Ka-6A by P.W.-3 complainant Rajpal. Perusal of chik FIR of cross case shows that P.W.-3 complainant Rajpal, P.W.-1 Kishori Lal and P.W.-5 Lal Ram are named accused in cross case and in cross examination defence has made suggestion to these three witnesses to the effect that at the time of occurrence they assaulted accused appellant Ram Khilari and Chandan with lathies and Farsa at the door of accused appellant Ram Khilari and on raising alarm by them villagers came with guns and fired causing injuries to deceased Mahendra Singh and Preetam Singh but all the said three witnesses have denied occurrence in the manner suggested by defence. The above suggestion given to these three witnesses namely P.W.-1 Kishori Lal, P.W.-3 complainant Rajpal and P.W.-5 Lala Ram shows that at the time of occurrence their presence is admitted to defence. Defence has denied presence of P.W.-4 injured Prem Singh at the time of occurrence as is apparent from the suggestion given to him by defence in cross examination but P.W.-4 Prem Singh has stated on oath that he is an eye witness of occurrence and he has suffered injuries in the occurrence alleged by prosecution. P.W.-1 Kishori Lal and P.W.-3 complainant Rajpal have also stated in their statements on oath that P.W.-4 Prem Singh is an eye witness of occurrence and he has suffered injuries in the occurrence. Statement of P.W.-2 Dr. R.B. Singh as well as injury report of P.W.-4 Prem Singh Ext.Ka-3 shows that medical examination of his injury was conducted by P.W.-2 Dr. R.B. Singh on 2.11.1978 at 1.20 P.M.. Statement of P.W.-2 Dr. R.B. Singh as well as injury report of P.W.-4 Prem Singh Ext.Ka-3 shows that medical examination of his injury was conducted by P.W.-2 Dr. R.B. Singh on 2.11.1978 at 1.20 P.M.. In his medical examination one scabbed abrasion 2/10" X 1/10" was found in front of his left forearm in middle. P.W.-2 Dr. R.B. Singh has stated that said injury of P.W.-4 Prem Singh was about ¾ days old. It means the injury found on the body of P.W.-4 injured Prem Singh might have been caused at the time of occurrence. Certainly, the injury found on the body of P.W.-4 Prem Singh is very superficial but occurrence is alleged to have taken place on 1.11.1978 at 8 P.M. and the FIR Ext.Ka-6A has been lodged on the same day at 11.45 P.M. after 3.45 hours before lodging of cross FIR, therefore, FIR lodged by prosecution is prompt and in FIR presence of P.W.-4 Prem Singh at the time of occurrence has been specifically mentioned. P.W.-1 Kishori Lal, P.W.-3 complainant Rajpal and P.W.-4 injured Prem Singh have stated on oath also that P.W.-4 Prem Singh is an eye witness of occurrence and he has suffered injury in the occurrence. In view of above, after having considered all facts and circumstances of the case and evidence on record, we are of the view that presence of P.W.-4 injured Prem Singh cannot be denied at the time of occurrence. P.W.-1 Kishori Lal, P.W.-3 complainant Rajpal, P.W.-4 injured Prem Singh and P.W.-5 Lala Ram have fully supported the prosecution story of occurrence narrated in FIR Ext.Ka-6A. In the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri 2012 (IV) SCC 124 , Hon'ble Apex Court has held," that minor contradictions are bound to appear in the statement of truthful witnesses as memory sometimes plays false, sense of observation differs from person to person. In the case of Faquira Vs. State of U.P. AIR 1976 S.C. 915 , Hon'ble Apex Court has held that," minor discrepancy guarantees that witnesses are not tutored." In the case of State of U.P. Vs. Krishna Master & others; 2010 Cri. L.J. 3889 (SC), Hon'ble Apex Court has held that," The prosecution evidence may suffer from its inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. Krishna Master & others; 2010 Cri. L.J. 3889 (SC), Hon'ble Apex Court has held that," The prosecution evidence may suffer from its inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof." In the case of State of U.P. Vs. Krishna Master & others (supra) Hon'ble Apex Court further has held that," the basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole." We have perused the statements of P.W.-1 Kishori Lal, P.W.-3 complainant Rajpal, P.W.-4 Prem Singh and P.W.-5 Lala Ram. There appears no material contradictions in their statements to disbelieve them in view of principles laid down by Hon'ble Apex Court in above pronouncements. In the case of Hari Vs. State of Maharashtra (2009) 3 S.C.C. Crl. 1254 (SC) Hon'ble Apex Court has held that no general principle has been laid down that non explanation of injury of an accused person shall in all cases vitiate the prosecution case. It would depend on facts and circumstances of each case. Perusal of injury report of accused appellant Chandan Ext.Kha-3 shows that he had four injuries. Out of which two injuries were contusions, one injury was abrasion and one injury was incised wound. Except injury of incised wound, remaining injuries of accused Chandan were superficial. In the same way perusal of injury report of accused appellant Ram Khilari Ext.Kha-4 shows that injuries of accused appellant Ram Khilari are superficial as he had two abraded contusions only. During occurrence such superficial injuries might have not been noticed. Therefore, no adverse inference may be drawn against prosecution for non explanation of such injuries. P.W.-1 Kishori Lal has stated in cross examination made by defence at page 7 (page 48 of paper book) that at the time of occurrence he did not see injuries to accused Ram Khilari and Chandan. Therefore, no adverse inference may be drawn against prosecution for non explanation of such injuries. P.W.-1 Kishori Lal has stated in cross examination made by defence at page 7 (page 48 of paper book) that at the time of occurrence he did not see injuries to accused Ram Khilari and Chandan. P.W.-3 complainant Rajpal has also stated in cross examination at page 5 (page 58 of paper book) that he did not see injuries to accused Ram Khilari and Chandan but P.W.-5 Lala Ram has stated in his statement on oath that when he saw that accused Ram Khilari, Chandan and Saheb Singh shall kill his brother, he assaulted Chandan with Gandasa and raised alarm. It is relevant to mention that in FIR Ext.Ka-6A there is no mention of causing injuries to Chandan and Ram Khilari but in statements recorded under section 161 Cr.P.C. P.W.-3 complainant Rajpal and P.W.-5 Lala Ram have stated that Lala Ram gave Gandasa blow to Chandan. P.W.-3 complainant Rajpal has stated at page 3 (page 56 of paper book) in cross examination made by defence that till dictation of report Ext.Ka-6A he did not talk with Lala Ram P.W.-5, therefore, there appears sufficient reason for non mentioning of causing injury to accused Chandan by P.W.-5 Lala Ram in FIR Ext.Ka-6A.. It is apparent from discussion made above that causing injury to accused Chandan by P.W.-5 Lala Ram with Gandasa has been mentioned by witnesses in their statements recorded under section 161 Cr.P.C.. Therefore, after having considered all facts and circumstances of the case and evidence on record, we are of the view that it is not proper to say that prosecution has concealed injury of accused Chandan and has not explained it. It is apparent from FIR Ext.Ka-6A as well as statements of P.W.-1 Kishori Lal, P.W.-3 complainant Rajpal, P.W.-4 Prem Singh and P.W.-5 Lala Ram that occurrence has started from room of Kishori Lal and ended after firing out of the room. At the beginning of occurrence P.W.-3 Rajpal complainant was inside room and P.W.-5 Lala Ram gave blow of Gandasa to Chandan out of room. In such situation, it is not possible for everyone to see every action of all persons present there. It is also natural that person being assaulted shall defend himself. In such situation, it is not possible to explain every injuries of assailants. In such situation, it is not possible for everyone to see every action of all persons present there. It is also natural that person being assaulted shall defend himself. In such situation, it is not possible to explain every injuries of assailants. Defence has only proved injuries of accused Ram Khilari and Chandan but had not examined any witness to prove that the occurrence has taken place in the manner alleged by defence in cross report and P.W.-1 Kishori Lal, P.W.-3 complainant Rajpal, and P.W.-5 Lala Ram have specifically denied the suggestion given by defence to them to the effect that they assaulted accused appellants Ram Khilari and Chandan with lathies and Farsa at the door of accused appellant Ram Khilari and on raising alarm by them villagers came and fired causing injuries to deceased Mahendra Singh and Preetam Singh. After having gone through whole facts and circumstances of the case as well as evidence on record, we are of the view that defence has failed to establish facts which on the test of preponderance of probabilities make defence version acceptable. Name of P.W.-5 Lala Ram has not been mentioned in FIR Ext.Ka-6A. But in Narpal Singh Vs. State of Haryana AIR 1977 S.C. 1066 Hon'ble Apex Court has held that," evidence of witness not referred to in FIR cannot be discarded for sole reason of his not being named in FIR. As mentioned above presence of P.W.-5 Lala Ram at the time of occurrence is admitted to defence. Therefore, his testimony cannot be disbelieved for not being named in FIR.. Version of FIR Ext.Ka-6A as well as statements of P.W.-1 Kishori Lal, P.W.-3 complainant Rajpal, P.W.-4 Prem Singh and P.W.-5 Lala Ram are fully corroborated by statements of P.W.-2 Dr. R.B. Singh, P.W.-6 Dr. R. Prakash Singh and P.W.-10 Major M.K. Chaterji as well as post mortem report of deceased Preetam Singh Ext.Ka-6, injury report of Prem Singh Ext.Ka-3, injury report of Kishori Lal Ext.Ka-4, injury report of Phool Singh Ext.Ka-5, post mortem report of deceased Mahendra Singh Ext.Ka-7 and his injury report Ext.Ka-21. Dead body of deceased Mahendra Singh and blood stained earth as well as fired cartridges and one live cartridge have been recovered by I.O. from the place of occurrence alleged by prosecution as is apparent from site plan Ext.Ka-12, recovery memo of blood stained earth Ext.Ka-13 and recovery memo of fired cartridges Ext.Ka-2. Dead body of deceased Mahendra Singh and blood stained earth as well as fired cartridges and one live cartridge have been recovered by I.O. from the place of occurrence alleged by prosecution as is apparent from site plan Ext.Ka-12, recovery memo of blood stained earth Ext.Ka-13 and recovery memo of fired cartridges Ext.Ka-2. After having gone through whole evidence on record as well as all facts and circumstances of the case, we are of the view that the prosecution has proved that the occurrence has taken place in the manner and at the place alleged by prosecution. Perusal of impugned judgement passed by trial court shows that trial court has gone through whole evidence on record and has considered all points relevant for determination of the case. Conclusion drawn by trial court is based on judicious analysis of evidence on record. In view of discussion made and conclusion drawn above, we are of the view that learned trial court has rightly accepted version of occurrence alleged by prosecution. In FIR Ext.Ka-6A it has been specifically mentioned that accused Jagbir, Bijendra and Diggo alias Dragvir Singh were armed with guns, accused Bishambhar alias Ganeshi and Karan Singh were armed with kattas whereas accused Saheb Singh, Chandan Singh, Dariyab Singh, Gulab Singh, Gyasia, Rupa, Amar Singh, Ram Khilari and Babu were armed with lathi and Farsa. P.W.-3 complainant Rajpal has fully supported above version of FIR in his statement on oath. P.W.-1 Kishori Lal and P.W.-4 Prem Singh have also supported above version of FIR in their statements on oath. P.W.-5 Lala Ram has stated on oath in his statement that when after having heard noise he reached the room of occurrence he saw accused Ram Khilari and Saheb Singh armed with lathies and accused Chandan armed with Farsa. He has further stated that he saw 10 to 12 more persons at the chabutera of room and below chabutera. He has stated that accused Diggo and Jagvir had guns and rest had Farsa and lathi. P.W.-5 Lala Ram has stated names of only five accused Ram Khilari, Saheb Singh, Chandan, Jagvir and Diggo. He has not stated names of remaining accused but has stated that there were 10 - 12 more persons in addition to said five accused. He has stated that accused Diggo and Jagvir had guns and rest had Farsa and lathi. P.W.-5 Lala Ram has stated names of only five accused Ram Khilari, Saheb Singh, Chandan, Jagvir and Diggo. He has not stated names of remaining accused but has stated that there were 10 - 12 more persons in addition to said five accused. Considering whole statement of P.W.-5 Lala Ram, we are of the view that the statement of P.W.-5 Lala Ram is not inconsistent with statements of P.W.-1 Kishori Lal, P.W.-3 complainant Rajpal and P.W.-4 Prem Singh. As concluded above FIR is prompt and statements of P.W.-1 Kishori Lal, P.W.-3 complainant Rajpal and P.W.-4 Prem Singh are fully in consonance with FIR Ext.Ka-6A. P.W.-1 Kishori Lal has stated in his statement that after having entered into his room accused Ram Khilari and Saheb Singh began to assault him with lathis. Rajpal, Balbir, Bedan and Than Singh who were sitting near him forbade them and raised alarm where upon Prem Singh, Phool Singh, Mahendra Singh and Preetam Singh came, thereafter on exhortation given by Saheb Singh accused Diggo, Bijendra and Jagvir fired with guns and accused Bishambhar and Karan Singh fired with kattas. About 8 or 9 fires were made. P.W.-3 complainant Rajpal has also stated in his statement that accused Saheb Singh and Ram Khilari assaulted Kishori Lal with lathis. He has further stated that accused Chandan remained present with Farsa. P.W.-3 Rajpal has stated that they forbade and raised alarm, whereupon Lala Ram came with Gandasa, Mahendra Singh, Preetam Singh, Phool Singh and Prem Singh also came out side room. Thereafter accused Saheb Singh gave exhortation whereupon five accused persons having guns and kattas opened fire. P.W.-4 Prem Singh has stated in his statement that accused Saheb Singh, Chandan Singh and Ram Khilari were on chabutera. He has also stated that on exhortation given by accused Saheb Singh five accused persons having fire arms opened fire. P.W.-5 Lala Ram has stated in his statement that when he reached room, he saw accused Saheb Singh, Ram Khilari and Chandan making "Marpit" with his brother Kishori Lal. P.W.-5 Lala Ram has also stated that on exhortation given by accused Saheb Singh accused persons having guns opened fire. P.W.-5 Lala Ram has stated in his statement that when he reached room, he saw accused Saheb Singh, Ram Khilari and Chandan making "Marpit" with his brother Kishori Lal. P.W.-5 Lala Ram has also stated that on exhortation given by accused Saheb Singh accused persons having guns opened fire. After having gone through entire statements of P.W.-1 Kishori Lal, P.W.-3 complainant Rajpal, P.W.-4 Prem Singh and P.W.-5 Lala Ram it is apparent that all the fourteen accused named in FIR Ext.Ka-6A formed an unlawful assembly in which accused Jagvir, Bijendra and Diggo were armed with guns, accused Bishambhar alias Ganeshi and Karan Singh were armed with kattas, accused Chandan Singh was armed with Farsa and remaining accused were armed with lathi's and in prosecution of common object of said unlawful assembly accused Chandan, Ram Khilari and Saheb Singh entered into dwelling house of Kishori Lal and assaulted him with lathis. It is also apparent from statements of above witnesses that fires have been opened by aforesaid five accused persons having guns and kattas on exhoration given by accused Saheb Singh later on. In view of evidence on record offences under sections 148, 452 and 323/149 IPC have been proved against accused appellant Chandan but trial court has convicted him for offences under section 147 and 452 IPC only and state has filed no appeal. Therefore no interference is justified in conviction and sentence of accused appellant Chandan Singh recorded by trial court. In view of discussion made and conclusion drawn above after having gone through entire evidence on record, we are of the view that learned trial court has rightly convicted and sentenced accused appellants Jagvir Singh, Bishambhar and Karan Singh of appeal No. 182 of 1981 for offences under sections 148 IPC, 302 IPC read with section 149 IPC and section 324 IPC read with section 149 IPC. Sentences awarded by trial court are not excessive. No appeal has been preferred by State for enhancement of sentences. In view of discussion made and conclusion drawn above, we are of the view that both appeals have no merit. Both appeals are dismissed accordingly. Accused appellants Jagvir Singh, Bishambhar, Karan Singh and Chandan are on bail. Sentences awarded by trial court are not excessive. No appeal has been preferred by State for enhancement of sentences. In view of discussion made and conclusion drawn above, we are of the view that both appeals have no merit. Both appeals are dismissed accordingly. Accused appellants Jagvir Singh, Bishambhar, Karan Singh and Chandan are on bail. They shall surrender before trial court within one month from the date of this judgement to serve sentence awarded to them, failing which trial court shall ensure their arrest and shall send them jail for serving sentence. Let a copy of this judgement be sent to trial court for securing compliance. Send back records of trial court immediately. ——————